The Supreme Court of India has, in two recent judgements, attempted to address the problem of collective violence in India, in light of increasing instances of mob violence. The imperative for these judgements was the spate of deaths, violence and wanton destruction caused by ‘mobs’ — from ‘gau rakshaks’ attacking Muslims under the garb of cow protection to organised violent campaigns by Rajput groups against the movie Padmaavati.
Both judgements acknowledge how violent acts are organised and instigated at the behest of certain organisations and their leaders for political mileage. Yet, despite such acknowledgement, its guidelines do little to curb the problem of collective violence and its fundamental basis in the instrumental use of violence for achieving the political goals of a particular community or political organisation.
Collective violence is rarely an isolated or spontaneous phenomenon. Rather, such violence is usually accompanied by distinct political motivations, and an aim to subvert the rule of law with the rule of force to achieve political objectives, often with the complicity of ruling parties and governments.
Studies focussed on ethnic riots have long discredited the notion of ‘spontaneous’ communal riots, concluding instead that such violence is usually structured and organised, with distinct political — and occasionally electoral — aims. The Supreme Court, too, has emphasised on the need to hold leaders and organisations accountable for organising or calling for violent action. Unfortunately, in the absence of an overhaul of existing legislative mechanisms to curb collective violence, and without reference to the political impetus behind such actions, the court’s suggestions for reform can only go so far.
Fundamentally, the law must address the role played by organisations in committing offences, instigating or promoting collective violence. Organisational responsibility for crimes can take many forms. For example, incorporated companies may be held liable for the actions of their employees, particularly when those actions are committed by those employees in control of the affairs of the corporation. Yet, outside the realm of corporate criminal liability, there is little effort to recognise organisational responsibility under our criminal law.
Instead, the State is forced to rely upon the severe and routinely misused provisions of statutes like the Unlawful Activities Prevention Act, which allows the State to ‘ban’ organisations and criminalise their membership. The arrests of prominent activists under the garb of membership of an ‘unlawful organisation’ indicates the danger of such blanket provisions for assigning collective liability, even as other organisations like the VHP or Sanatan Sanstha, whose members are known to have repeatedly committed violent crimes for the benefit of the organisation, go unpunished. The law is bereft of any other mechanisms to place greater scrutiny and responsibility on organisations and their leaders.
The Supreme Court’s recognition of organisational responsibility for collective violence is necessary, but far from sufficient to curb collective violence. The real task lies in redesigning the legal framework to squarely place responsibility and liability on organisations and leaders who benefit politically from instigating and organising riots and mobs. One possible step is to increase police and judicial scrutiny of organisations whose members have been charged with criminal activities, and imposing liability on the organisation or its leaders where violence is conducted by their members, instead of merely criminalising membership or penalising only the perpetrators of the violence.
Organisational responsibility can also be increased by introducing new offences which punish organisation of potentially violent assemblies as criminal negligence, which would require a higher duty of care to be discharged when a person is in a position of responsibility within an organisation, or when organising events like demonstrations, military drills or weaponry training, which can foreseeably lead to violence, and imposing sentences like public censure or community service orders for failure to abide by this duty of care.
Finally, the State must act to demolish the nexus between the its political authority, collective violence and the criminal justice system. Greater police accountability and independence from the ruling government or MP and MLA is crucial. Further, criminal procedures which allow political interference in the criminal justice system — such as requiring executive sanction for the prosecution of hate speech, or orders for the withdrawal of such prosecution, must be reformed to reduce arbitrary political interference. Concomitantly, the office of public prosecutors responsible for prosecuting such offences on behalf of the State must be made more independent and accountable through fixed-term limits and improved appointment mechanisms.
Collective violence has reached endemic proportions across India. In an atmosphere where the rule of law can be so easily subverted at the whims of anyone with the means to organise and engage in violence, we need to rethink the legal framework that allows organisations and their leaders to be shielded from legal liability for driving communal violence for political gains.
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